Anju Chawla, New Delhi V. ACIT, New Delhi

ITA 1695/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7365 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 22-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Keywords: Search and seizure; Validity of assessment; Accommodation entries
• Section: 143(3); 133A; 153A; 54; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS.1694, 1695, 1696, 1697 & 1699/DEL./2013 (ASSESSMENT YEARS : 2004-05 TO 2008-09) ITA NO.1684/DEL./2013 (ASSESSMENT YEAR : 2009-10) SMT. ANJU CHAWLA, VS. ACIT, CC IX, A 7, NIRMAN VIHAR, NEW DELHI. DELHI 110 019. (PAN : AALPC1212B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN, ADVOCATE REVENUE BY : SHRI RAVI JAIN, CIT DR O R D E R PER BENCH : THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE FILED AGAINST THE ORDER OF THE CIT (APPEALS)-XXXII, NEW DELHI DATED 20.12.2012 FOR THE ASSESSMENT YEARS 2004-05 TO 2009-10. 2. SINCE THE ISSUES RAISED ON THE VALIDITY OF ASSES SMENT FRAMED UNDER SECTION 153A READ WITH SEC. 143(3) OF THE ACT ON THE BASIS THAT THERE WAS NO ASSESSMENT PENDING BASED ON THE ORIGINAL RETURN OF INCOME FILE D AS ON THE DATE OF SEARCH AND NO INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE WA S FOUND DURING THE COURSE OF SEARCH, GOES TO THE ROOT OF THE MATTER, WE PREFER A DJUDICATION THEREOF FIRST. 2 ITA NOS.1694 TO 1697 & 1699/DEL/2013 ITA NO.1684/DEL/2013 3. THE BRIEF FACTS ARE THAT SEARCH AND SEIZURE OPER ATION UNDER SECTION 132 OF THE ACT ALONG WITH SURVEY OPERATION UNDER SECTION 133A OF THE ACT WERE UNDERTAKEN AT VARIOUS RESIDENTIAL AND BUSINESS PREMISES OF ASEEM KUMAR GUPTA & GROUP AND OTHER BENEFICIARIES GROUP OF CASES ON 26.3.2010. IT WAS A LLEGED THAT SHRI A.K. GUPTA WAS PROVIDING ACCOMMODATION ENTRIES TO SEVERAL BENEFICI ARIES WITH THE HELP OF SEVERAL BANK ACCOUNTS OPENED IN THE NAME OF SEVERAL PROPRIE TARY CONCERNS AND COMPANIES IN WHICH EITHER HE HIMSELF OR HIS EMPLOYEES WERE DIREC TORS OR PROPRIETORS. THE SEARCH AND SURVEY COVERED THE PREMISES OF SHRI A.K. GUPTA, SEV ERAL ASSOCIATES/EMPLOYEES OF SHRI A.K. GUPTA, SEVERAL INTERMEDIATORY COMPANIES AND SO ME BENEFICIARIES INCLUDING THAT OF THE ASSESSEE. NOTICE UNDER SEC. 153A OF THE ACT WAS ISSUED AND IN RESPONSE THERETO THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING T HE SAME INCOME AS SHOWN IN ITS ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 O F THE ACT. THE ASSESSING OFFICER THEREAFTER BEING NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE MADE ADDITION ON ACCOUNT OF INCOME FROM SOME HOUSE PROPERTIES OWNED BY THE ASSESSEE REJECTING THE CONTENTIONS OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 23(1)(A) READ WITH SECTION 23(4) OF THE ACT ARE APPLICABLE. BESIDES THIS ADDIT ION, ONE MORE ADDITION HAS BEEN MADE IN THE ASSESSMENT YEAR 2009-10 BY RESTRICTING THE EXEMPTION CLAIMED UNDER SEC. 54 OF THE ACT AT RS.16,16,700 AS AGAINST RS.28,81,0 00 CLAIMED BY THE ASSESSEE. THESE ACTIONS OF THE ASSESSING OFFICER WERE QUESTIONED BY THE ASSESSEE BEFORE THE LEARNED CIT (APPEALS) BUT THE ASSESSEE COULD NOT SUCCEED. T HE ASSESSEE HAD ALSO RAISED THE VALIDITY OF ASSESSMENT FRAMED UNDER SECTION 153A RE AD WITH SECTION 143(3) OF THE ACT BESIDES OTHERS ON THE BASIS THAT THERE WAS NO INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND ORIGINAL ASSESSMENT PROCEEDING S WERE COMPLETED ON THE DATE OF 3 ITA NOS.1694 TO 1697 & 1699/DEL/2013 ITA NO.1684/DEL/2013 SEARCH AND THUS NO ASSESSMENT YEARS UNDER CONSIDERA TION WERE PENDING BEFORE THE AO ON THE DATE OF SEARCH. THE LEARNED CIT(APPEALS) DID NOT CONCUR WITH THIS CONTENTION OF THE ASSESSEE AND REJECTED THE GROUND RAISED BY T HE ASSESSEE IN THIS REGARD. 4. AT THE OUTSET ITSELF, THE LD. AR POINTED OUT THA T SIMILAR ADDITION WERE MADE BY THE AO IN THE HANDS OF THE ASSESSEES HUSBAND, SHRI RAJ KUMAR CHAWLA ON 50:50 BASIS. THE APPEAL PREFERRED BY THE HUSBAND, SHRI R AJ KUMAR CHAWLA HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN ITA NOS 1682/DEL/2013, 5087/DEL/2012, 1698/DEL/2013 & 1683/DEL/2013 VIDE O RDER DATED 17.02.2015 WHEREIN THE TRIBUNAL WAS PLEASED TO DELETE THE IMPU GNED ADDITION. THE LD. DR FAIRLY CONCEDED THAT THE ITAT HAS DELETED THE SIMILAR ADDI TION MADE BY THE AO IN THE HANDS OF THE ASSESSEES HUSBAND. HOWEVER, HE RELIED ON T HE ORDER OF THE LOWER AUTHORITIES BELOW TO SUSTAIN THE ADDITION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. WE HAVE GONE THROUGH THE ORDER OF THE COORDINATE BENCH IN RESPECT OF THE ASSESSEES HUSBAND, SHRI RAJ KUMAR CHAWLA. WE FIND THAT SIMILAR ADDITION HAS BE EN MADE BY THE AO ON 50:50 BASIS IN THE HANDS OF THE HUSBAND AND WIFE (THE PRE SENT ASSESSEE BEFORE US). THE TRIBUNAL WAS PLEASED TO DELETE THE ADDITION BY OBSE RVING AS UNDER :- 19. IN ABSENCE OF REBUTTAL OF THIS MATERIAL FACT B Y THE REVENUE IN THE PRESENT CASE BEFORE US THAT NO INCRIMINATING MATERI AL WAS FOUND DURING THE COURSE OF SEARCH RELATING TO THE ASSESSEE FOR THE A SSESSMENT YEAR UNDER CONSIDERATION TO JUSTIFY THE ADDITIONS MADE IN THES E YEARS BY THE ASSESSING OFFICER AND ASSESSMENT BASED ON THE ORIGINAL RETURN OF INCOME FILED UNDER SEC. 139 OF THE ACT WAS PENDING AS ON THE DATE OF SEARCH , WE FOLLOWING THE ABOVE CITED DECISIONS BY THE LEARNED AR DISCUSSED ABOVE H OLD THAT THE ASSESSMENTS FRAMED UNDER SEC. 153A READ WITH SEC. 143(3) OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE NOT VA LID AND THE SAME ARE ACCORDINGLY HELD AS NULL AND VOID. THE RELATED GROU ND ON THE ISSUE IS THUS ALLOWED. 4 ITA NOS.1694 TO 1697 & 1699/DEL/2013 ITA NO.1684/DEL/2013 THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CHANGE IN THE FACTS WHICH COULD HAVE PERSUADED US TO TAKE A DIFFERENT VIEW. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH AND RELYING ON THE HONBLE JUR ISDICTIONAL HIGH COURT ORDER IN CIT V KABUL CHAWLA 61 TAXMANN.COM 412 (DELHI) WHE REIN THE HONBLE HIGH COURT HAS HELD THAT WITHOUT INCRIMINATING MATERIAL, NO AD DITION CAN BE MADE IN THE ASSESSMENT YEARS WHERE ASSESSMENTS ARE COMPLETE AND NOT PENDING BEFORE AO ON THE DATE OF SEARCH. SO, WE DIRECT DELETION OF THE IMPUG NED ADDITION IN ALL THE ASSESSMENT YEARS. 6. IN VIEW OF THE ABOVE FINDINGS, WHEREBY WE HAVE H ELD THAT NO ADDITION CAN BE MADE WITHOUT ANY INCRIMINATING MATERIAL UNEARTHED D URING SEARCH ON ASSESSMENT YEARS COMPLETED AND NOT PENDING BEFORE THE AO ON THE DATE OF SEARCH, THE ADDITIONS ARE ORDERED TO BE DELETED. IN VIEW OF THE SAID ORDER, T HE OTHER GROUNDS HAVE BECOME ACADEMIC IN NATURE, SO NOT ADJUDICATED. THE SAME A RE BEING DISPOSED OFF AS SUCH. 7. IN THE RESULT, ALL THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 1 5 TH JANUARY, 2016. SD/- SD/- (L.P. SAHU) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 15 TH DAY OF JANUARY, 2016/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXXII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.